I havewrittena good deal about Medicaid temporary suspensions in the past. Well, my new colleague at Gordon & Rees, Knicole Emanuel (whose blog I have followed for years), recently pointed out that a recent federal OIG audit of California pediatric dentists participating in the state’s “Denti-Cal” (i.e., Medicaid for dentists) program found that 335 of those dentists – or about 8% of the pediatric dentists providing Medicaid services – were engaging in “questionable” billing practices. The formal OIG report is located here. The California state Medicaid agency – the Department of Health Care Services (DHCS) – has vowed to step up monitoring and take action “if needed.”

Uh-oh. We’ve been down this road before with DHCS. For those who don’t click through, in the summer of 2013, a joint investigation by CNN and the Center for Investigative Reporting “uncovered” a widespread pattern of suspicious Drug Medi-Cal (DMC) billing activity in the substance abuse treatment industry in Los Angeles County. The response by DHCS and its investigators and auditors – whether warranted or not – was draconian. I’ve heard estimates that a third of the DMC providers in LA County that were investigated were “temporarily” suspended by fall 2014. As is often the case with temporary suspensions, most of these providers essentially were forced to shut down. In my experience, the DMC providers with a sufficient source of DMC revenue to wait out the temporary suspensions survived; the ones without non-DMC revenue did not.

Knicole has a number of good tips and suggestions concerning the Medicaid audit and investigation process generally (and she should! She has a ton of experience doing this sort of work). I thought I’d chime in as well. In the past few years, our firm represented a number of California providers that were the target of a temporary suspension by DHCS. All were in the context of the DMC crackdown alluded to above. Based on that experience, I have several California- and DHCS-specific tips to offer.

Under California Welfare & Institutions Code Section 14043.36(a), in addition to payment suspensions, providers will be temporarily suspended from participating in the Medi-Cal program altogether, and their NPI numbers will be deactivated, while they are under investigation. This is automatic. It doesn’t matter how much (or little) evidence of fraud there is, or what that evidence is – if the matter is referred to the California Department of Justice, the referred provider’s NPI is suspended, and its ability to treat Medi-Cal patients is stopped until the investigation is resolved. Oh, and these investigations can last a long time, especially in cases involving industry-wide crackdowns, where dozens (or more) of providers are being investigated simultaneously.

The audits are oftentimes hectic and incomplete. It’s not uncommon for auditors to be there for less than two hours. That 90 minute visit then becomes the entirety of the basis for a finding of credible evidence of fraud. Any evidence of compliance – or at least non-fraudulent activity – produced later is typically considered suspect.

In this regard, audited providers should always have staff members accompany and assist the auditors. Never let the auditors pull documents for themselves. Staff should repeatedly ask if the auditors have found everything they need, and offer assistance in finding any “missing” documents. I have seen more than one instance in which the auditors left to their own devices with a provider’s files couldn’t find documents, refused to ask for help in locating them, and then concluded that the documents didn’t exist – which, of course, became Exhibit 1 in support of the finding of credible evidence of fraud. Even if the provider finds and produces the “missing” documents after-the-fact, DHCS often will view them as fabricated.

Staff members of an audited provider should do whatever they can to identify and copy the documents reviewed by auditors immediately after (or even during) the audit. In my experience, half of the battle in defending a temporary suspension is trying to recreate what the auditors looked at.

Doublecheck the copies made by auditors. Again, I can’t stress this enough. If auditors overlook a document (say the back side of a two-sided document), and then subsequently can’t find it when they go back through their copies, they’re going to assume that the document didn’t exist. Don’t give them that opportunity.

Audits will almost always be unannounced. That means it is crucial now to go through your files and make sure they are as squeaky clean as possible. Providers will not have notice and lead time to do so before the auditors arrive. Providers should consult their attorneys if they are worried in this regard – many attorneys provide billing compliance self-audit services, and spending that money now may well save a provider many times the cost in future legal fees if a temporary suspension can be avoided.

Providers should prepare their staff in advance if they think they might be audited. I’ve heard of instances of DHCS investigators pounding on the door and demanding to be admitted in a fairly confrontational manner. I’ve even heard rumors of some investigators being armed, though I have to stress that this is all second- or third-hand, so I cannot confirm whether it actually happened. In any event, the process can feel like a stressful police ambush. That can be scary for office staff – and scared staff members oftentimes look like they’re trying to hide something, plus they can be distracted and confused.

If a provider does receive notice that payments and NPIs are being suspended (usually with fifteen days notice), the absolute best chance to resolve the matter quickly and efficiently will come up front at the meet-and-confer stage. This is a meeting with DHCS auditors, program people, and the staff who are ultimately responsible for the decision to suspend. It will occur quickly, often within a month or two of the suspension. This is the provider’s first and best opportunity to plead its side of the case. It is crucial to consult with your lawyer and – ideally – be represented in the meeting. Providers can come across defiant and defensive if they try to go it alone – which isn’t surprising, of course, because they have been accused of fraud and even had their livelihoods threatened! That isn’t what DHCS wants to hear. DHCS wants to hear the provider acknowledge any mistakes, and it wants to hear how the provider is going to fix them.

If the matter is not resolved at the meet-and-confer stage, it’s going to go to administrative briefing. Pursuant to California Welfare and Institutions Code Section 14043.65, there is no in person hearing – the entire appeal is decided on the papers. It is crucial for a provider to put the most persuasive and polished brief on record – not only because it gives you a better chance to win at the administrative stage, but also because if you lose there, it is going to be the record of your defense on judicial appeal or even in further informal settlement discussions.

I know that some of this might be frightening. My first thought after putting pen to paper on this post was to that scene in Empire Strikes Back, when Luke tells Yoda he isn’t afraid, and Yoda tells him ominously “you will be.” But there is a reason for my sturm und drang. As Knicole says, state Medicaid agencies have a good bit of leverage in these overpayment and fraud and abuse investigations, and in my opinion, DHCS falls towards the very top end of that list. This isn’t a time for providers to put their heads in the sand and figure that they’ll deal with any problems with DHCS later down the line if and when something happens. By that point, it very well might be too late – or at the very least, the providers will have missed the best chance (or even the second best chance) to prevent or resolve any problems cheaply and quickly.

I’ve been thinking a good bit about home health care lately. A lot of that is the concerted effort in the Affordable Care Act to promote home health in lieu of placement in a skilled nursing facility. It seems like every other long term care provider out there – including most of the big ones – is trying to expand its home health presence as quickly as possible. Some of that may be my recent experience with my grandmother’s end-of-life care over the past six or seven months, which was spent in a skilled nursing facility (first), an assisted living facility (second), and at her home receiving home-based hospice care (last). Her last few weeks at home left me with a positive impression of home health care.

Anyway, I hate to be a stick in the mud, but one thing does concern me. As this blog shows, I write a lotaboutMedicaid fraud-based temporary suspensions. The same remedy (technically suspension, effectively termination) exists under Medicare. As that regulation and Medicaid counterpart show, it’s a broad power. The applicable federal or state agency need only show a “credible allegation of fraud,” at which point it can withhold all payments owed to the provider – including those that have nothing to do with the alleged fraud, and even when the provider can show that the vast majority of claims are legitimate. Indeed, after the ACA, federal and state regulators are now told that they must have good cause to release any of the owed claims, and they can only do so under a limited set of circumstances. As one colleague recently put it to me, “temporary suspension” is really code for “lazy man’s termination.”

So what does that have to do with home health care? Regulators have long recognized that home health care carries an increased risk of fraud. It makes sense, of course. There is no direct supervision when a home health caregiver provides care in the home of a recipient. Usually, the only way to know what the caregiver did, and for how long, is the say so of the caregiver and the recipient. The opportunity for collusion is more-or-less unchecked. Add in lower level managers responsible for scheduling and supervising the caregiver (inasmuch as supervision is possible), and it becomes very difficult to police fraud. And indeed, from 2010 to 2014, OIG has identified over one billion dollars associated with fraudulent home health claims – and that’s without looking. The real amount likely is a multiple of that.

That should cast the rapid expansion of the home health care industry in an ominous light. The sorts of institutional providers looking to increase their home health presence quickly undoubtedly will be able to garner a large share of the market quickly. And that’s a good thing for the most part. But a lot of business means a lot of opportunities for fraud. It’s a lot of caregivers, a lot of lower level managers, and a lot of recipients – which means a lot of risk that some small number of them might (for example) collude to record care for services not provided, and then split the proceeds.

And remember from above, if federal or state regulators believe that they have any credible allegation of fraud, they can suspend all payments owed to the company, not just those associated with the fraud. Ouch. Now, is it realistic that regulators would step in and turn the revenue spigot off entirely for a company providing home health services to thousands or even tens of thousands of recipients? Probably not – at least not without a back-up provider lined up to step in. But it’s certainly a lot of leverage on the part of Medicare and Medicaid, and there’s a strong likelihood that regulators might use that leverage to pressure institutional providers into favorable settlements (both financially and in terms of a going-forward corrective action plan).

So how should companies aspiring to a big share of the home health market protect themselves in such a perilous area? That’s something I intend to address in the next few posts.

The Centers for Medicare and Medicaid Services (CMS) announced that it will reveal its new Nursing Home Compare 5-Star Quality Rating System to the public on February 20, 2015. CMS will change its ratings to raise the bar for achieving a high rating in the Quality Measures category. Thus, ratings will likely fall for many nursing homes even though there has been no change in the quality of care.

CMS is raising the standards for nursing homes to achieve a high rating in the Quality Measures category by increasing the numbers needed to achieve a particular star category. According to CMS, in 2008 the initial scoring for the Quality Measures rating was set at a distribution that reflected the status quo with the expectation that there would be progress and changes to the quality measures thresholds over time. When nursing homes have made progress in raising performance standards, CMS resets the distribution to promote further progress.

In addition to raising performance expectations, CMS is making the following changes to the 5-star rating system:

Additional Quality Measures: CMS added two additional quality measures for antipsychotic medication use in nursing home residents without diagnoses of schizophrenia, Huntington’s disease, or Tourette syndrome.

Survey Expansion: CMS announced a plan for State Survey Agencies to conduct specialized, onsite surveys of a sample of nursing homes in the country to assess the adequacy of resident assessments and the accuracy of information reported to CMS that is used to calculate quality measures.

These changes to the 5-Star Quality Rating System are the third major revision to the Nursing Home Compare website since it was launched in 1998. CMS says that a fourth change is scheduled for 2016.

Medical Equipment and Sales: The OIG plans to examine 10 areas regarding equipment and supplies, including issues relating to power mobility devices, lower limb prosthetics, nebulizer machines and related drugs, diabetes testing supplies, and the payment system for renal dialysis services and drugs. The OIG will also review claims for frequently replaced medical equipment supplies to determine supplier compliance with medical necessity, frequency, and other Medicare requirements, noting that suppliers have automatically shipped certain device supplies without physician orders for refills.

Other Providers: The OIG plans to review other providers’ policies, practices, and billings and payments, including ambulance, anesthesia, chiropractic, diagnostic radiology, imaging, and clinical laboratory services. The OIG also will examine inappropriate and questionable billing by ophthalmologists, physician place of service coding errors, high use of outpatient physical therapy services, supplier compliance with transportation and set-up fee requirements for portable X-ray equipment, and high use of sleep-testing procedures by sleep disorder clinics.

Prescription Drugs: The OIG will review several areas relating to prescription drugs. Of note, the OIG plans to examine payments for drugs purchased under the 340B Drug Pricing Program by determining how much Medicare Part B spending could be reduced if Medicare could share the savings for drugs purchased under the 340B program.

Part A and B Contractors: The OIG plans to examine seven areas relating to oversight of contracts and contractor functions and performance.

Information Technology Security, Protected Health Information, and Data Accuracy: Of note, the OIG plans to examine whether CMS oversight of hospitals’ security controls over networked medical services is adequate to protect electronic-protected health information. The OIG states that computerized medical devices that are integrated with electronic medical records and a health network are a growing threat to the security and privacy of health information. These medical devices monitor a patient’s health status and transmit and receive health data.

Other Part A and Part B Program Management Issues: The OIG will examine enhanced enrollment screening procedures for Medicare providers under the ACA. For the first time, the OIG will conduct a risk assessment of the Pioneer Accountable Care Organization Model.

Medicare Part C and Part D: The OIG plans several activities regarding Medicare Part C and Part D, including Medicare Advantage Organizations’ compliance with Part C requirements, ensuring dual -eligible patient access to drugs under Part D, and Part D billing and payments including Medicare Part D payments for HIV drugs for deceased beneficiaries.

Medicaid Program: The OIG will investigate several areas relating to Medicaid, noting that protecting Medicaid from fraud, waste, and abuse takes on a heightened urgency as the program continues to expand. Thus, the OIG will investigate a variety of areas in the Medicaid program, including state claims for drug rebates and claims for federal reimbursement. The OIG will also review Medicaid payments by states for home health services and other community-based care, including determining whether adult day care services providers complied with federal and state requirements and whether home health agency health care workers were screened in accordance with federal and state requirements. In addition, the OIG will review issues relating to medical equipment and supplies, transportation, health care-acquired conditions, and managed care. Finally, the OIG will review a variety of issues regarding state management, funding, oversight, and payment for Medicaid.

Other: The OIG plans to review and investigate many other areas. For the first time, the OIG will determine the extent to which hospitals comply with the contingency planning requirements found in the Health Insurance Portability and Accountability Act (HIPAA), as well as compare the hospitals’ contingency plans with government and industry recommended practices.

In United States v. Houser, No. 12-14302, June 24, 2014, the 11th U.S. Circuit Court of Appeals affirmed the conviction of a nursing home operator for conspiring with his wife to defraud the Medicare and Medicaid programs by billing for criminally worthless services, as well as for payroll tax fraud and failure to pay personal tax returns.

The trial court’s order of conviction states that the government proved beyond a reasonable doubt that three nursing facilities operated by the defendant submitted or caused to be submitted false or fraudulent claims to the Medicare and Medicaid programs for worthless services because the services were not provided, were deficient, inadequate, substandard, did not promote the maintenance or enhancement of the residents’ quality of health, and were of a quality that failed to meet professionally recognized standards of health care. The 11th Circuit adopted the trial court’s description of the nursing homes’ conditions as “barbaric” and “uncivilized.” According to the Department of Justice, this was the first conviction following a trial in federal court for submitting claims for worthless services.

On appeal, the 11th Circuit rejected the defendant’s argument that attaching the worthless-services concept used in civil actions on to the federal health care fraud statute makes the statute unconstitutionally vague because it is not possible to determine at what point health care services have crossed the line from bad to criminally worthless. While the appeals court did not endorse or adopt the worthless-services theory, it upheld the conviction because certain required services were not provided to residents at all.

The Centers for Medicare and Medicaid Services (CMS) recently issued interpretive guidance in two areas of interest for nursing homes: use of reprocessed single-use devices and preparation of eggs in nursing homes. Nursing homes should become familiar with these guidance documents to avoid survey deficiencies.

CMS revised its guidance regarding use of single-use devices: S&C Memorandum No. 14-25-NH, “Advance Copy — Single Use Device Reprocessing under Tag 441, Revisions to Interpretative Guidance in Appendix PP, State Operation Manual (SOM) on Infection Control,” issued May 9, 2014. CMS made this revision to be consistent with current Food and Drug Administration (FDA) regulation that allows the reprocessing and marketing of single-use devices under specific conditions. Nursing homes may purchase reprocessed single-use devices when these devices are reprocessed by an entity or a third-party reprocessor that is registered with the FDA. CMS states that the nursing home must have documentation from the third-party reprocessor indicating that it has been cleared by the FDA to reprocess the specific device in question.

CMS also has revised its interpretative guidance and procedures relating to egg preparation in nursing homes: S&C Memorandum No. 14-34-NH, “Advance Copy of Revised F371; Interpretive Guidance and Procedures for Sanitary Conditions, Preparation of Eggs in Nursing Homes,” issued May 20, 2014. Nursing homes should use pasteurized shell eggs or liquid pasteurized eggs to eliminate the risk of residents contracting Salmonella Enteritidis. Using pasteurized eggs allows nursing homes to meet resident preferences for soft-cooked, undercooked, or sunny-side up eggs. CMS has stated that nursing homes should not prepare or serve soft-cooked, undercooked, or sunny-side up eggs from unpasteurized eggs. Unpasteurized eggs must be cooked until the yolk and the white are completely firm. For all other forms of egg preparation, including hot holding of eggs and eggs used as an ingredient before baking (such as in cakes or meat loaf), the nursing home must use pasteurized eggs or cook the food item to an internal temperature of 160 degrees.

Nursing homes should also take note of guidance issued to surveyors relating to egg preparation. Signed health release agreements between the resident (or the resident’s representative) and the facility acknowledging that the resident has accepted the risk of eating undercooked unpasteurized eggs are not permitted. Thus, if the nursing home prepares or serves unpasteurized or undercooked eggs — eggs that do not have a completely firm yolk and white — CMS has instructed surveyors to consider citing deficiencies at F371.

The Office of Inspector General (OIG) of the Department of Health & Human Services (HHS) has issued an advisory opinion about whether senior communities that paid a placement agency for referring new residents violated the federal anti-kickback statute. OIG Advisory Opinion No. 14-01. Although the OIG did not impose sanctions, the opinion highlights the risks inherent in these types of arrangements.

A nonprofit organization that owns subsidiaries involved in senior housing and geriatric care, including senior residential communities and skilled nursing facilities, requested an advisory opinion about the relationship between two residential communities and a placement agency. The placement agency contracted with the two communities to promote their available housing and place new residents with them. Under the agreement the placement agency receives a fee for every new resident it places at one of the communities. The fee is based on a percentage of a new resident’s initial charges and does not include any charges billed to federal health care programs. In addition, the contracts prohibited the placement agency from referring new residents who rely on state or federal health care money and do not allow the communities to accept any referrals of residents who receive state or federal health care money.

The communities did not provide services reimbursed by Medicare, no residents who were referred received services provided under a Medicaid waiver program, and none of the residents received therapy from skilled nursing facility staff. Although none of the residents who were referred by the placement agency received federally payable services at the time of the referral, it was possible that the residents could receive federally payable services by an affiliated entity in the future.

Although the OIG found that there was remuneration that implicated the anti-kickback statute, it concluded that the facts and circumstances of the arrangement adequately reduced the risk that the payment provided under the contract could be an improper payment for referrals or the generation of federal health care program business. The placement fee does not include any charges to the federal health care programs. In addition, the contract prohibits the placement agency from referring and the communities from accepting any residents who rely on state or federal health care programs. The placement agency does not refer residents for services and housing that are paid by federal health care programs, nor does it limit a resident’s choice of provider. Finally, the parent company certified that its affiliated entities do not track referrals or common residents or providers.

The OIG’s opinion highlights the risks of referral-based payment arrangements. By paying the placement fee, the communities paid remuneration that implicates the anti-kickback statute because the residents may later receive care reimbursed by federal health care programs. Percentage compensation arrangements are problematic under the anti-kickback statute because they relate to the volume and value of the business between the parties. However, due to the unique circumstances of this matter — including that the entities certified they did not track referrals to determine which residents eventually received Medicare and Medicaid services — the OIG found that the remuneration was not likely to be an improper payment to generate federal health care program business.

Of note, the OIG’s advisory opinion did not extend to a community that at one time had residents who had access to federally payable on-site therapy services provided by staff from a skilled nursing facility. Health care providers that enter volume- and value-based contracts should proceed with caution: The OIG’s advisory opinion is tied to a specific and narrow set of facts

The U.S. Department of Health and Human Services’ Office of Inspector General (OIG) recently released the OIG Compendium of Priority Recommendations. The OIG derives its 25 priority recommendations from more specific recommendations that the OIG has made in audit and evaluation reports but has not yet implemented. The recommendations cover 25 broad areas and provide insight into the OIG’s focus areas. According to the OIG, the “recommendations represent opportunities to achieve cost-savings, improve program management, and ensure quality of care and safety of beneficiaries. …” Health care providers should review the OIG recommendations to assist in focusing compliance efforts.

The OIG’s recommendations fall into seven broad categories:

1. Medicare Policies and Payments;

2. Medicare Quality of Care and Safety Issues;

3. Medicaid Program Policies and Payments;

4. Medicaid Quality of Care and Safety Issues;

5. Oversight of Food Safety;

6. HHS Grants and Contracts; and

7. HHS Financial Stewardship.

Below is a summary of selected recommendations that affect senior providers, hospice, and home health.

Hospice care in nursing homes – The OIG expresses concern that Medicare’s hospice payment methodology may lead some hospices to inappropriately seek out beneficiaries in nursing homes. As the OIG notes, Medicare pays hospices an all-inclusive daily rate regardless of the number of services furnished. The OIG identified hundreds of hospices that had more than two-thirds of their beneficiaries residing in nursing facilities in 2009.

The OIG recommends monitoring hospices that depend heavily on nursing facility residents. In addition, the OIG recommends modification of the payment system for hospice care in nursing facilities, including statutory authority if necessary.

Home health services: billing practices – The OIG expressed concern about home health agencies’ billing practices, noting that one review found one in four home health agencies exceeded a threshold that indicated unusually high billing for at least one of six measures of questionable billing.

As a result of this finding, the OIG’s recommendations include increasing monitoring of billing of home health services and taking action regarding inappropriate payments and questionable billing.

Skilled nursing facilities: billing practices – According to the OIG, skilled nursing facilities have a number of billing problems. The OIG states that these problems include submitting inaccurate, medically unnecessary, and fraudulent claims, concluding that in 2009 skilled nursing facilities billed one-quarter of their claims in error.

The OIG has several recommendations to remedy skilled nursing facilities’ billing problems, such as increasing and expanding review of claims, monitoring compliance with new therapy assessments, and strengthening monitoring of skilled nursing facilities that disproportionately bill for higher paying resource utilization groups.

Nursing homes: patient harm, questionable resident hospitalizations, and inappropriate drug use – The OIG found a number of problems with nursing homes. According to the OIG’s findings, about 33 percent of Medicare beneficiaries experienced adverse or temporary harm events during their stay. Fifty-nine percent of these events were clearly or likely preventable, and the OIG found that these events resulted from substandard treatment, inadequate resident monitoring, and failure or delay of necessary care. The OIG also found that nursing homes had questionable hospitalizations and safeguards against unnecessary antipsychotic drug use.

The OIG made several specific recommendations to combat the nursing home problems that it identified. The recommendations include instructing nursing home surveyors to review facility practices for identifying and reducing adverse events, instructing surveyors to review nursing home hospitalization rates, and having the Centers for Medicare and Medicaid Services assess whether survey and certification processes offer adequate safeguards against unnecessary antipsychotic drug use in nursing homes.

Other recommendations – Health care providers should review the OIG’s entire list of priority recommendations to determine which recommendations apply to them. The recommendations provide a useful starting point for targeted compliance activities.

I saw this story a few days ago. It involves the Centers for Medicare & Medicaid Services’ risk corridors program, which, as the article states, essentially is a regulatory mechanism designed to shift funds from insurers with a healthier population of insureds to those with an older or sicker base. These programs – which will be in place from 2014 until the end of 2016 – have been the subject of intense criticism since last fall, though a lot of that tempered down when we started to get a good idea of what the overall policyholder demographics would be. They require the insurance industry to contribute (on a per capita basis) $20 billion over the next three years; the federal government will match that to the tune of $5 billion, plus cover any cost overruns.

Well, it turns out that there has been a recent development. According to the Los Angeles Times article, it seems that the administration and the Department of Health & Human Services have “quietly” been reserving “billions” of dollars to cover potential shortfalls. It suggests that one potential cause is the administration’s decision earlier in the spring to let old plans that are not Affordable Care Act-compliant stay in place for two more years. Essentially, the story goes, healthy people with plans that are skimpier than required under the ACA elected to stay in those (cheaper) plans, while older or sick people fled to the new and more generous ACA-compliant policies. Combine that with intense pressure by the administration on insurance companies not to implement drastic premium increases, and you have a situation where the insureds in ACA-compliant plans are older and sicker than expected, and premiums are underpriced. For its part, the administration and CMS deny that they anticipate the funds will be needed, and instead say it’s a case of “better safe than sorry.”

We’re seeing the same type of phenomenon with respect to the risk corridors. As initially written, old ACA-noncompliant policies weren’t grandfathered in, and the young and old and sick and healthy were directed to the same exchanges. Voila, problem solved! But that’s not how it works anymore. For whatever reason, the administration decided to backtrack and allow insureds on old (noncompliant) policies to keep them until 2016. That decision – regardless of its motivations – has thrown yet another wrench in the works of a very complicated and carefully designed law.

Following recent natural and man-made disasters such as 9/11, Hurricane Katrina, and other floods and fires, the federal government has increased its focus on emergency preparedness. Federal regulations – 42 C.F.R. § 483.75(m) – require that Medicare- and Medicaid-certified nursing homes have written emergency plans and provide employees with emergency preparedness training.

In a 2012 report, the Office of Inspector General (OIG) reviewed state survey data for emergency preparedness in nursing homes. Although most long-term care facilities had emergency plans, the majority of the plans were wholly inadequate. Half of the sampled plans contained only 50 percent of the CMS-recommended checklist items, according to the OIG’s “Gaps Continue to Exist in Nursing Home Emergency Preparedness and Response During Disasters: 2007-2010.”

On February 28, 2014, CMS issued Survey and Certification Letter S&C-14-12, a revised emergency preparedness checklist. Some of the key items in the checklist are the following:

Collaborate with local emergency management agency: Work with local emergency management agencies to ensure the development of an effective emergency management plan.

Analyze each hazard: Analyze the specific vulnerabilities of the facility and determine actions for each identified hazard.

Decision criteria for executing plan: Include factors to consider when deciding whether to evacuate and shelter in place. Determine decision-maker, and chain of command.

Develop shelter-in-place plan: Provide for various emergency measures, such as assessing whether the facility can withstand the threat, measures to secure the building, at least seven days worth of resources such as food and power, and security plan.

Communication infrastructure contingency: Develop communication plan in the event of telephone failures, such as walkie-talkies and ham radios.

Concluding that current emergency preparedness regulatory requirements are not comprehensive enough to address the complexities of actual emergencies, CMS issued a proposed rule that 17 different providers and suppliers must meet to participate in the Medicare and Medicaid programs. “Medicare and Medicaid Programs; Emergency Preparedness Requirements for Medicare and Medicaid Participating Providers and Suppliers,” 78 Fed. Reg. 79081 (Dec. 27, 2013). The proposed rule addresses the following gaps that CMS believes exist in the current regulations: (1) communication to coordinate with other systems of care with local jurisdictions; (2) contingency planning; and (3) personnel training.

Because long-term care facilities are unique among other health care providers as many of the residents can be expected to have long-term or extended stays, the proposed rule also requires these facilities to develop an emergency preparedness communication plan. The emergency preparedness communication plan would include a means of providing information about the general condition and location of residents under the facility’s care.

Finally, the proposed rule for long-term care facilities also requires emergency plans to utilize an “all-hazards” approach, which, in an emergency situation, would include a directive to account for missing residents.

In light of the new checklist and CMS’ recent focus on emergency preparedness, health care providers, including nursing homes, should evaluate their emergency preparedness plans. In addition, facilities should look out for new emergency preparedness regulations.

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